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Environmental Law Program

2006 Student Environmental Law Scholarship

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Spring 2006 Environmental Advocacy Seminar Paper Abstracts

Paula Leverett Cobb, The Nexus Between CERCLA and the National Trails System Act
This paper presents a general assessment of how the intersection of the National Trails System Act (NTSA), especially section 1247, with the Comprehensive Environmental Response Compensation and Liability Act (CERCLA) could benefit South Carolina. The Environmental Protection Agency has a Land Revitalization Initiative that encourages the reuse of remediated Superfund sites, and the NTSA encourages states, local governments and private non-profit groups to establish trails that connect into a national system of recreational and historic trails. This paper explores how the synergy between the two statutes can be used for the twin purposes of cleanup and reuse as trails.
Valerie Cochran, Pre-Booker CITES Enforcement: Will the Booker Decision Impact CITES' Role in Stemming the Illegal Trade in Wildlife and Plants?
This paper investigates the enforcement of CITES in the United States before the 2005 Booker decision. The author attempts to predict whether Booker will have a significant impact on determining criminal sentences for illegal wildlife trade. Special attention is paid to the effect the U.S. Sentencing Guidelines had on sentencing wildlife trade offenders before Booker.
Erika L. Hartwig, Global Climate Change in South Carolina: Science, Impacts, and Solutions
As global climate change threatens to dramatically alter the earth due to anthropogenic emissions, the author argues that actions must be taken quickly to reduce the release of carbon dioxide and other greenhouse gases. With the United States Federal Government overcautiously assessing policy solutions for global warming, and the Kyoto Treaty negotiations at a stand-still, the author reviews some of the litany of climate legislation has been passed by state government and regional agreements to address and prepare for global climate change. The paper assesses the current political scope at the international and national level follows a brief description of the science of global climate change. A unique and in-depth look at the consequences of global climate change in South Carolina is followed by an analysis of South Carolina's direct contribution to global climate change. The author concludes with recommendations for state-level legislation.
John Martin, Nonpoint Source Pollution in South Carolina's Coastal Zone: Its Control and Management and Options for Change
This paper examines the issue of nonpoint source pollution (NPS) control and management in the coastal zone of South Carolina. Regulatory program components are reviewed and the effectiveness of enforcement and incentives promoted to encourage NPS reductions are explored. The paper also outlines the purpose and mission of South Carolina's coastal zone program in relation to NPS pollution, its chief components, and its legal authority. In addition, the three primary approaches (regulatory, voluntary, and watershed planning) used by the South Carolina Coastal Zone Program for managing and controlling NPS pollution are described and evaluated. Background information is also provided on other state and federal statues, programs, and agencies involved with NPS pollution control in South Carolina. Finally, recommendations for change and improvement focus primarily on implementing more mandatory controls, education and outreach, creating additional incentive programs, and removing waivers and exclusions for agriculture and silvaculture.
M. Britton Mason A Comparison of Georgia and South Carolina's Coastal Programs
The coastal development boom is no secret anywhere along the Atlantic seaboard, and Georgia and South Carolina are no different. The state governments, judiciaries, and environmental groups are well aware of the opportunities and challenges such development poses to the state's economic and environmental interests. Ideally the legislature and judiciary should seek to balance attractive short term economic gain, with environmental conservation/mitigation to ensure a beautiful, healthy environment that can subsist for generations to come. This paper seeks to analyze the different approaches that the legislature and judiciary in South Carolina and Georgia are taking in striking such a balance. The paper begins by analyzing each state's laws/regulations and recent litigation independently and ends by comparing and contrasting each state's approach. Part I discusses the current state of coastal conservation and development in each state. Part II outlines some of the most important laws, regulations, and other programs in place in each state to protect the coastline. Part III summarizes some of the most recent litigation concerning development of each state's coastline. Finally, part IV draws conclusions and comparisons between the two states.
Laura McCary, The relicensing of the Santee Cooper Project and provisions in federal and state law to protect downstream wetlands and estuaries
Dams making up the Santee Cooper Project in South Carolina are currently undergoing a Federal Energy Regulatory Commission relicensing. The renewed license for the Santee Cooper project must balance environmental concerns with recreational and economic interests. This paper describes the environmental effects that the Santee Cooper Project has had on the areas downstream of the project, particularly the ecologically sensitive and valuable Santee Delta. The author also outlines legal requirements for mandating the protection of these areas in the renewed license and describes state agency responsibility for requiring adequate protections during the relicensing period.
Will Parker, Small MS4 Storm Water Regulation - A Regional and National Comparison of South Carolina's General Permit and Compliance Efforts and National Case Study Examples of Successful Methods
Storm water is a leading cause of water pollution in South Carolina and the United States as a whole. This paper examines the requirements by the United States Environmental Protection Agency (EPA) on the states to help control the problems associated with storm water. The author compares how South Carolina is implementing requirements with actions undertaken by other states in the region, and provides examples of successful measures by other states documented in EPA case studies.
David Rose, Global Climate Change: A Nuisance to the Public Without a Public Nuisance Remedy
This paper briefly addresses the threats posed by global climate change on both regional and global levels. Because global warming is a unique problem caused by numerous actors across political boundaries, but at the same time is a problem that is likely to have significant local effects, it represents a classic "tragedy of the commons" situation. While this does not make global warming fundamentally different from all other types of environmental degradation, the scale of the problem is such that many of the traditionally-used methods of combating environmental degradation are not effective. This paper analyzes a recent suit by several environmental groups and the Attorneys General of eight states to limit the GHG emissions of five U.S. energy producers through public nuisance claims. The disposition of this particular case elucidates the need for other, new ways of addressing this issue.
Joseph L. Vukin, Chattooga River, North Carolina: Public Trust Doctrine and the Essential Purpose of Portage in Navigable Waters
In this paper, the author argues that North Carolina law should be changed to recognize the right to portage incident to navigation. Currently, the public trust doctrine give citizens of the state a right of use and enjoyment of the navigable waters of the state. These rights extend to fishing, swimming, navigating, and are codified by the North Carolina General Assembly. However, the practical application of the right of navigation has been limited to a use of only the water; in other words, there is no right to enter riparian land for purposes of portage. The author argues that portage is essential to the right of navigation, and without it, one cannot effectively take advantage of the principle right. A variety of North Carolina case law, other state case law, and public policy support this change. As a result, paddlers will be able to portage around unpredictable barriers without the threat of trespassing. The author concludes that the law needs to be addressed with specific focus on portage incident to the public right of navigation.
Ashley Zarrett, What South Carolina Species are in Need of Federal Protection?
The South Carolina Department of Natural Resources provides a listing of rare, threatened, and endangered species in the state by county. However, the federal listing of rare, threatened and endangered species does not include all of South Carolina's species. This distinction definitely hinders the protection of these species. The question explored by the author in this paper is what rare, threatened, and endangered species of South Carolina should be added to the federal list so that they might gain more protection, which she answers in the affirmative.

Spring 2006 Environmental Law of South Carolina Papers

Wesley P. Bryant, The South Carolina Department Of Natural Resources And International Paper: International Paper's Presence In South Carolina Coupled With The Role DNR Plays And Will Play In IP's Timberland Sell-Off
The South Carolina Department of Natural Resources (DNR) by way of its Heritage Trust Program and the new Heritage Trust Revenue Bonds is able to acquire, conserve, and ultimately completely protect much of the timberland owned and for sale by International Paper in South Carolina. International Paper is the largest private landowner in the United States and the largest paper and pulp company in the world, and has had significant landholdings in South Carolina. The great impact International Paper has had on South Carolina due to its mill operations and economic activities will no doubt flow over into the realm of conservation after International Paper allows the DNR to purchase vast amounts of its timberland. The only downfall is that DNR has to generate money to acquire the land it wants and deems necessary for conservation in South Carolina. As this paper concludes, South Carolina's new Heritage Trust Revenue Bonding program will, however, give a larger buying power for the department and more than likely help them acquire larger parcels of acreage than South Carolina expected.
Summer Collette, To Fill or Not To Fill
"To fill or not to fill?" - that is the question. As the United States' population grows and as the over-development of coastal lands becomes a norm, so does the reality of erosion. In addition, uncontrollable factors, such as hurricanes, have been known to completely wipe out an existing beachfront, causing erosion of the remaining beach to become an enormous problem for both Federal and State governments. There is only so much land, and once it is gone, there is no replacing it. This paper examines the evolution of environmental laws throughout the southeastern states of South Carolina, Georgia, and Florida. Specifically, it focuses on current laws within these states regarding beach-fill projects, which is a form of beach nourishment. It compares and contrasts the beach-fill laws within these states and makes recommendations to preserve the integrity of South Carolina beaches in the future.
Byron P. David, Mercury Pollution in South Carolina
In its purest form, mercury is an element existing as a heavy liquid metal. The element is naturally found in the Earth's crust in several forms, all of which are toxic to humans. Humans can neither create nor destroy mercury, but can cause it to be released into the atmosphere. By reducing the amount of mercury released into the atmosphere, the amount of mercury found in South Carolina waters will also be reduced. This will reduce the mercury levels in fish and ultimately reduce mercury concentrations ingested by humans. Every year thousands of unborn children, infants and young people in South Carolina are exposed to toxic mercury, substantially increasing their risk of experiencing many significant health defects. Cognizant of the problem, the South Carolina Department of Health and Environmental Control (DHEC) has advised against eating certain fish from more than 1,500 miles of South Carolina's rivers, over 45,000 acres of its lakes, and all of its coastline. In 2005, the Environmental Protection Agency promulgated the Clean Air Mercury Rule (CAMR) to require mercury clean-up on a national scale. This federal rule, however, does not force the nation's coal burning power plants to adopt the strictest available pollution controls and thus will delay meaningful clean up by several decades. The individual states have until November 2006 to either adopt the CAMR restrictions as set out by the EPA or enact their own more restrictive legislation. Coal burning power plants are South Carolina's largest source of mercury pollution, and this paper argues that time to act is now. The author suggests that South Carolina can lead the way in reducing mercury pollution by enacting restrictive legislation in pursuit of virtual elimination of mercury pollution from coal burning power plants within the state.
Matthew Douglas, The State of South Carolina's Liabilities in the Instance of the Barnwell LLW Disposal Facility
This paper provides a general overview of the Barnwell facility and the many State and federal regulations that dictate its everyday activities. The paper begins by focusing on the lease agreement between the State of South Carolina and Chem-Nuclear and how this agreement affects the respective parties' liabilities. It discusses the reasons and justifications of the termination of the Southeast Compact, which gave rise to the current compact, the Atlantic Compact, and how this change could affect the liability of South Carolina in maintaining the post-closure custodial management of the Barnwell facility. Next, this paper discusses the benefits of membership in the Atlantic Compact, which include Commission funds and the ability of South Carolina to impose sanctions and penalties, as well as the liabilities associated with membership which include breach of contract claims and the possibility of South Carolina having to indemnify other member States. Next, this paper focuses on the South Carolina Torts Claims Act and the Worker's Compensation Act and how these respective acts can benefit South Carolina in maintaining the Barnwell facility. Next, this paper focuses on "worst-case scenarios" based on various factors to determine the likelihood of a "triggering event" taking place which would expose the State to liabilities, including how post-1991 reports have demonstrated the safety of the Barnwell facility. This section includes a discussion of the Pollution Control Act and how penalties might give rise to suits, and how the types of waste at the Barnwell facility lead to an opposite conclusion. Next this paper discusses how the Extended Care Fund has been depleted of many of its economic resources, and the urgency of replenishing this fund, including an exploration of how early termination of the lease agreement by Chem-Nuclear could further deplete the Extended Care Fund. Next this paper discusses the benefits of private commercial insurance (including how policy trends, such as the Energy Policy Act, make commercial insurance more favorable), while addressing some problems with such insurance. Finally, this paper concludes with a discussion of Superfund and liabilities associated with the law that other organizations will not provide protection for. Ultimately, the author ends the paper with recommendations for South Carolina in addressing liability concerns, including a conclusion that South Carolina will not face substantial additional liabilities in the instance of the Barnwell facility.
Sherod Hampton Eadon III, Dockominiums: Will they float in South Carolina?
This paper provides the reader with an in-depth analysis of the emerging nationwide concept of dockominiums and its possible effects in South Carolina. A brief overview of the public trust doctrine and riparian rights gives the reader a better understanding of the broad conceptual theories which influence the decision of whether or not to allow a permit in the building of a dockominium. A discussion of the South Carolina Department of Health and Environmental Control (SCDHEC) Office of Ocean and Coastal Resource Management (OCRM) gives the reader a basic understanding of the concerns underlying the issuance of permits for docks on tidelands and navigable waterways. The paper also incorporates case law from various other jurisdictions on dockominium issues. The paper reaches the conclusion that while South Carolina courts have never ruled dockominiums to be illegal, developers should be cautious in pouring money into such projects as OCRM permits to build these complexes may be denied.
William Graham, Disposal of State Owned Land: Are Heritage Trust Sites and Other "Public" Properties at Risk?
As a result of a recent South Carolina State Budget proviso, state-owned lands (including parks, heritage trust sites, wilderness areas, etc.) are supposed to be transferred to the South Carolina State Budget and Control Board and will now be administered by the five-member panel that makes up the governing directors of the Budget and Control Board. The 2004 Budget Proviso § 73.18 has significantly increased the property management power of the South Carolina State Budget and Control Board, legally shifting much of the property transferability control previously held by other state agencies under the purview of the five member board. This paper investigates the legal issues this arrangement raises, including whether three votes is all that is required to enable a state park to be sold for private development. The paper also investigates the history and structure of some of the State's largest land holding entities, and the process employed by the Budget and Control Board to dispose of "surplus" property. The author concludes that although this authority presents a concern to watch, the rush to sell state owned property has not occurred. Nonetheless, the pressure on state government to make property available to the private sector will only increase as the State's population grows, and the impetus would be further exacerbated should South Carolina be faced with another economic downturn. On the other hand, the author concludes that properties such as parks, heritage trust sites, and wilderness areas are protected to some degree by legal theories such as the Charitable Trust Doctrine and the Public Trusts Doctrine that can add extra protection should government officials move to alienate what the public considers protected property. Furthermore, public opinion carries an extraordinary amount of weight in guiding the General Assembly to allow or restrict the property disposal powers of the Budget and Control Board.
J. Greg Hendrick, Preservation and Management of South Carolina's Wildlife Resources - Some Recommendations
This paper looks at the populations of three of South Carolina's most popular game animals: the bobwhite quail, the eastern wild turkey, and the whitetail deer. In researching the topic, the author considered the effect that regulation of hunting activity has had on the populations of the respective species along with other factors, such as changes in habitat, that have affected their numbers. The paper examines various methods and practices that have proven effective in increasing populations. In doing this the author draws from various books written by qualified biologists, publications distributed by the South Carolina Department of Natural Resources, and his own experience in managing for increased game populations.
Jessica Case Holland, Ensuring Compliance with Sarbanes-Oxley: The Disclosure of Environmental Liabilities
The Sarbanes-Oxley Act of 2002 requires corporations to disclose certain aspects of the operation of their corporation in order to gain an accurate record of the corporation's financial condition. Among those required disclosures are environmental liabilities, which are expenditures required of a corporation in order to comply with environmental law. As this paper explains, numerous regulations and laws govern the disclosure of environmental liabilities. Corporations must take care to comply with each and every provision and corporate officers must take additional steps to certify that all reports are correct and internal controls are in place in ensure correct and thorough information is available. Corporations not complying with environmental liability disclosure requirements face penalties and potential shareholder suits, and corporate officers who violate the certification requirements face heavy fines and imprisonment in addition to potential civil liability. This paper concludes that the Sarbanes-Oxley Act of 2002 has improved compliance with environmental liability disclosure laws and has created a better means of enforcing the laws by increasing sanctions and creating personal liability for corporate officers.
Riley Maxwell, The Cliffs Communities as an Example of a Planned-Unit Development (PUD)
This paper explores the Cliffs Communities as an example of a Planned-Unit Development (PUD). PUDs are possible alternatives to zoning. This paper discusses cases surrounding issues which the varying Cliffs Communities have run across, as well as the benefits to having this PUD. Some of the issues discussed are dockage, conservation easements, and zoning issues.
Patti McKenzie, The Importance of Citizen Suits in the Enforcement of the Clean Water Act
This paper discusses the author's opinion that citizen suits play a major role in our nation's environmental laws and are a powerful enforcement weapon. This legal mechanism empowers citizens to aid in enforcing the law against polluters and violators so that our communities can be safer and cleaner. The paper is organized in seven parts and discusses: (I) the importance of citizen suits in our legal system; (II) when citizen suits are precluded; (III) the constitutional challenges to citizen suits, such as standing and mootness; (IV) notice requirements regarding citizen suits and (V) a discussion of Richland County's National Pollutant Discharge Elimination System Permit (NPDES permit) for its Municipal Separate Storm Water System (MS4); (VI) a citizen suit notice letter that was filed on April 10, 2006; and (VII) a discussion of the County's response to the that letter and Consent Order that was instated on May 1, 2006.
Laura Mitchum, South Carolina Conservation Bank: A Balancing Act
The South Carolina Conservation Bank was created to deal with the increasing growth and development in South Carolina. As this paper lays out, lawmakers passed the Conservation Bank Act because they saw the need to protect the state's natural landscape and historical sites while respecting the need for growth and respecting private property rights. The South Carolina Conservation Bank Act is detailed in its creation of the Bank and is specific as to how the Bank should operate and spend its allotted money. Despite opposition, the Conservation Bank has been successful in the last two years, and it has worked with non-profit groups to preserve some beautiful and worthy pieces of land. The future of the Bank will depend upon the continuation of funding and possibly increased funding. The author believes that the work of the Conservation Bank can ensure that South Carolina remains a state that is known for its natural, beautiful landscape.
Jason Reynolds, TESRA To The Rescue? The Threatened and Endangered Species Recovery Act of 2005, Its Affects On The Endangered Species Act of 1973 and on South Carolina
The success of the 1973 Endangered Species Act ("ESA"), intended to create a movement in the nation by requiring wise land-management practices with the goal of recovering species that had become threatened, endangered, or extinct, is a hotly debated topic which has led some to call for reform. Those who tout the ESA's success in South Carolina do so while pointing to notable recoveries of species such as the bald eagle. In South Carolina alone the bald eagle saw a rise from 59 pairs in 1990 to 114 in 1997. Likewise, accidental drownings of the endangered Kemp's Ridley sea turtle in South Carolina's waters have dropped significantly from an average of 224 a year in the 1980's to 127 in the 1990's, which according to environmental activists is due to improved fishing techniques, notably the use of turtle excluder devices on shrimp fishing nets, due to the existence of the ESA. Yet there are those who call for reform of the ESA, arguing lacking of delisting and recovery of species, failure to adequately address the adverse effects that land use restrictions impose on land owners, and use of scientific data too open to interpretation calls for reform. Representative Richard Pombo of California thus introduced the Threatened and Endangered Species Recovery Act of 2005 ("TESRA"), which passed in the House of Representatives on September 29, 2005, just ten days after being introduced. Part II of this paper examines the current state of environmental law in South Carolina by examining the ESA and pertinent case law which illustrate the ESA's effects on South Carolina ecosystems, land use practices and landowners. Part III of this paper examines HR 3824, the major changes it could bring to the ESA and the current arguments being made for and against the bill, and Part IV then analyzes the changes that TESRA is expected to make in South Carolina. The author concludes that before any further steps are taken on TESRA additional understanding, discussion and redrafting to close these gaps and question some of TESRA's motives and tactics is required.
Hayes K. Stanton, Coastal Management: An Analysis of South Carolina's and Georgia's Programs
Coastal communities draw industry, commerce, residential development, transportation, and navigation. This paper discusses the steps taken by South Carolina and Georgia through their Coastal Management Programs to protect the beauty and the valuable resources found on the coast. Both programs are discussed separately and also comparatively.
Kate Elizabeth Whetstone, The Heritage Trust Bonding Authority Act: An Analysis of Pending Timber Sell-Offs in South Carolina and the Steps Being Taken to Conserve Biological Diversity
Major timber companies recently announced plans to sell huge chunks of timber lands throughout the Southeast due to changing market conditions. This paper focuses on the importance of the timber industry in South Carolina, issues affecting conservation and the steps being taken to protect the rural character of the state. Particular attention is aimed at analyzing the recently enacted Heritage Trust Bonding Authority Act which allows for the state's Heritage Trust Program to issue bonds, borrowing against its currently revenue stream provided by deed stamp taxes, in order to raise around $30 million to enable the acquisition of timber land. Considering the background of the Heritage Trust Program, the involvement of numerous conservation groups, and the language of the legislation, this paper concedes that the Heritage Trust program Bill constitutes a positive first step in the conservation of timber lands. Yet, the legislation is limited in scope ultimately indicating a need for innovative new approaches to address the pending timber sales.
Adam Whitsett, The Effect of the United State Supreme Court Decision Kelo v. City of New London, Conn. on Eminent Domain Laws in South Carolina and a Summary of the Ensuing Proposed Legislation
In Kelo v. City of New London, Conn., the United States Supreme Court allowed the city council of New London to authorize a private corporation to condemn the property of nine individuals pursuant to a redevelopment plan. This corporation was also allowed to sell this condemned property to a private developer to build research facilities, shopping centers, and a parking lot. Although South Carolina case law suggests a different result if an identical situation arose in South Carolina, the legislature of the state is currently seeking to ensure that Kelo has no application in this state. There were twelve bills proposed in the South Carolina legislature regarding the use of eminent domain in the year following Kelo. This paper analyzes and compares these proposals.
Roger Kenneth Winn, Jr., The Evolution of Section 126 Under the Environmental Protection Agency's Clean Air Act
The purpose of this paper is to discuss the ability of downwind States to use section 126 of the Clean Air Act to compel the EPA to enforce emission restrictions on upwind States that are producing large amounts of ozone (NOx). This paper begins by examining the adverse effects that NOx has on the environment, and seeks to show why interstate ozone regulation is necessary. Then after taking a detailed look at the language of section 126, the paper thoroughly explains how various courts and the EPA have interpreted the applicability of section 126. In doing so, the paper discusses petitions that have been submitted, their content, and their effectiveness. Finally, the author hypothesizes about how, or if, section 126 will be used by States in the future.